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2nd Dept. Applies HO Exemption to Labor Law, Rejecting Plaintiff's "Voluntary" Work Theory (NY)

December 12, 2019

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The New York Labor Law is a harsh statute that imposes strict liability in certain situations.  One exception is the Homeowners’ Exemption, which exempts from liability the homeowners who occupy one and two-family dwellings, who contract for but do not direct or control the work.” This exemption was recently tested in the Second Department in <em><a href="">Lazo v. Ricci</a>.</em>

In <em>Lazo, </em>the plaintiff was the employee of a subcontractor that installed gutters on a project for the construction of a new single family home.  The owners of the home moved for summary judgment on the grounds that they are the owners of a single family home and did not control the work.  In opposition, the plaintiff argued the statute did not apply because the general contractor’s work may have been performed on a "voluntary" basis, implying that because the GC did the work for the homeowners as a "favor," the Labor Law exception did not apply.  But the Second Department rejected this argument, and upheld the trial court’s decision to grant the defendant’s motion for summary judgment.  In doing so, the court reasoned that the work that must be contracted for is the injured plaintiff’s work.  Because the plaintiff was an employee, the homeowners’ exemption applied -- and the homeowners did not direct or control any of the plaintiff's work.

The Labor Law remains strict.  But the Second Department’s decision to strictly apply the statute as worded saved the defendants from Labor Law liability.  It also saved common sense.

Thanks to Mike Gauvin for his contribution to this post.  Please email <a href="">Brian Gibbons</a> with any questions.


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